Kiwo V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

On 29 November, 2012, the High Court of Kwara State (S.D. Kawu, J) convicted the appellant for raping one Suliat Ibrahim (f), being an offence punishable under Section 283 of the Penal Code Law of Kwara State. The offence was said to have been committed on 11 May, 2010.

The appellant contested his conviction at the Court of Appeal (the lower Court) on his notice of appeal filed on 21 November, 2013 containing five (5) grounds of appeal. The appeal was heard and determined on four (4) issues formulated from the said 5 grounds of appeal. The appellant, both at the trial Court and the lower Court was represented by counsel.

On 16 July, 2013, the appeal was dismissed by the lower Court in the judgment of Tijjani Abubakar JCA unanimously concurred by the other two justices on the panel. Still aggrieved, the appellant has further appealed to this Court vide the notice of appeal filed on 26 July, 2013, which on his application filed on 31 January, 2018, was regularised on 24 October, 2019. The notice of appeal has 6 grounds of appeal.

​The appellant’s counsel, Ayodeji O. Omotosho, Esq., has formulated

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3 issues from the said 6 grounds of appeal. The issues are –

3i. Whether the evidence of PW3 and PW4 were not inadmissible, having been taken in contravention of Section 209(1) of the Evidence Act, whereupon the said evidence ought not to have been relied upon by the Court below (and the trial Court before it) in finding that the respondent had proved the guilt of the appellant beyond reasonable doubt for the offence of rape punishable under Section 283 of the Penal Code? – (Distilled from ground 4 of the notice of appeal). The appellant shall, at the hearing apply to the honourable Court for leave to raise this issue as a new point on appeal, not previously taken in the Courts below.

In the alternative

3ii. Whether there was cogent, credible and sufficient evidence/unequivocal corroborative on record which proved beyond reasonable doubt, that the appellant had, in fact, had unlawful sexual intercourse with one Suliat Ibrahim (PW3), such as to ground the conviction of the appellant for the crime of rape punishable under Section 283 of the Penal Code? (Distilled from grounds 1, 3 and 5 of the notice of appeal).

3iii. Whether PW3 and PW4’s

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testimonies of identity of the appellant as the perpetrator of the alleged rape of PW3 were spontaneous, extemporaneous, unrehearsed and reliable to justify the reliance on same to convict the appellant for the crime of rape punishable under Section 283 of the Penal Code? (Distilled from ground 2 of the notice of appeal).

The present issue 1 stridently, albeit vociferously, canvassed and argued before this Court, was not once canvassed at either the trial Court or the lower Court. It is a fresh issue, in the circumstance. An appellant cannot raise and argue a fresh issue in this Court of appeal being by way of re-hearing only, without leave of Court first sought and granted. The necessity for leave sought and granted to the appellant to raise fresh issue on appeal is the fact that an appellate Court is not in a position to determine the correctness or otherwise of an issue not raised and determined at the Court below per Ngwuta JSC, Adeosun v. The Governor, Ekiti State (2012) All FWLR (Pt. 619) 1044, (2012) 4 NWLR (Pt. 1291) 581, (2012) LPELR – 7843 (SC). Of course, it is indisputable that an appeal is an invitation to a higher Court to find out whether,

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on proper consideration of the facts and the applicable law, the Court below arrived at a correct decision. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211, (1989) 20 NSCC (Pt. 3) 64, (1989) 7 SC (Pt. II) 1; Iweka v. S.C.O.A. (Nig.) Ltd (2000) FWLR (Pt. 15) 2524, (2000) 3 SC 21 at 31;Adeosun v. Governor, Ekiti State (supra). A fresh issue raised and argued by an appellant without leave first sought and granted is incompetent and liable to be struck out and/or discountenanced.

I notice from the record that at pages 31 and 37 when the PW3 testified the appellant was represented by one Mr. Adesoko of counsel. Ditto when also the PW4 testified at pages 32 and 33. At the trial Court, no issue was raised, as it is being presently raised, that being children who had not attained the age of 14 years they could not deliver sworn testimonies by virtue of Section 209(1) of the Evidence Act, 2011. Neither the prosecutor nor the PW3 and PW4 complained that their right to testify under Section 209(1) of the Evidence Act, 2011, unsworn was violated. They seemed to acquiesce in it apparently as a veracity booster of the truth, in the fear of God, of the matter of their testimonies. ​

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The appellant, under issue 1, gave notice that he would seek leave to raise and argue the admitted fresh issue. He did not in actuality obtain the leave. He also did not move the Court for such indulgence either at the hearing of the appeal or before.

The ulterior purpose of this fresh issue is no doubt underscored by the concluding submission in paragraph 4.1.18 of the appellant’s briefs –

that where (sic) the evidence of PW3 who is the alleged victim is expunged, the foundation of the charge against the appellant would fall, any corroborative evidence, no matter how cogent, would be useless as there would be no evidence to corroborate. The appellant would, therefore, be entitled to an acquittal in respect of the offence for which he was convicted.

And that also is the reason and necessity for the issue to be raised in this Court in accordance with the due process of the law. This apart, it appears to me that the serious challenge to the facts recorded at page 33 of the record of appeal also requires an affidavit challenging the record. A duly certified record of appeal is presumed, to be correct. The appellant, in

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paragraph 4.1.19 of the appellant’s brief attacking the correctness of the record, submits:

“As regards PW4, the record shows that when she was asked who was older “between her and PW4”, her response was: “PW4 is older than me” (see page 33 of the record). The Court of Appeal, in rejecting the argument of the appellant that the testimony of PW4 was improperly admitted stated thus –

‘PW4 was asked who (sic) older between her and PW4, she said PW4 was older. Evidence of age of PW4 is not on record, and there is only one PW4 before the trial Court.” Issue 1 raises a fresh issue, which has not been properly brought before this Court – no leave having first been sought and granted for the appellant to bring forth the issue to this Court. Moreso, the issue can only succeed on proper challenge to the fact recorded in the duly certified records of appeal. There is no such affidavit challenging the record. The issue is incompetent.

​

The complaint under the incompetent issue 1 is that PW3 and PW4, being minors, are not obligated to have testified an oath as they did. Appellant contends,

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accordingly, that their testimonies on oath violated the provisions of Section 209(1) Evidence Act, 2011. The record shows clearly that at the trial Court, when they both testified, the appellant represented by a counsel did not whimper an objection. Both the appellant and his counsel seemed to acquiesce and condone PW3 and PW4 testifying on oath. Apart from a ground of appeal not being the appropriate procedure for belated objection, this conduct of the defence at the trial also raises issue of estoppel by conduct under Section 169 of the Evidence Act, 2011. All these in my view add up to render issue 1 improper and incompetent. I hereby discountenance it.

It appears the incompetent issue 1 is the main plank from which the appellant sprang his attack on the decision of the lower Court. Issue 2, raising some challenge to concurrent findings of fact on which the conviction of the appellant predicated, that is – that without PW3’s evidence there was no proof beyond reasonable doubt of the alleged rape, was raised in alternative to the incompetent issue 1. Issues 2 and 3 are specific attacks on the use of the evidence of the PW3 and PW4 by the two

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Courts below. That is, they challenge the concurrent findings of fact predicated on those pieces of evidence on which the conviction of the appellant and the affirmation of the same were premised.

The PW3 and PW4 delivered very simple and unconvoluted testimonies. The PW3 and her friend, PW4, both school girls in Junior Secondary School were returning from school on 11 May, 2010 when they ran into the appellant’s ambush. The appellant, masking his face with some powder sprang from the bush. He was wielding a scaring and scary cutlass. He held both girls hostage momentarily under his physical control and threatened to hurt them if ever they attempted to run. He took both girls to the bush. There, he selected the PW3 for his illicit and violent nonconsensual sexual intercourse. He repeatedly, in the process, threatened to hurt her with the cutlass if she dared to shout. The PW3 testified further that the appellant brought her back to the road and fled after he had forcefully had the illicit sexual intercourse with her; as a result of which her school uniform was blood stained. From there the two girls, fearfully walked home and narrated the incident

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to PW3’s father. A report was made to the police. The PW4, who previously knew the appellant, led the police officers to arrest him. This strong evidence of identification was neither challenged nor disputed.

The PW4, maintaining that she did not actually watch the appellant have sexual intercourse (the raping act) with the PW3, corroborated every other aspect of the PW4’s narration in materia particular. The PW3 and PW4 were cross-examined by one O. J. Adesoko of counsel. Their evidence was, each, unscathed by the cross-examination.

These days lawyers, in their bid to make the required number of appearances at the appellate Courts entitling them to apply for the conferment of the privilege of the rank of Senior Advocate, have resorted to bothering this Court with most trivial cases. This case appears to be of these trivials.

Notwithstanding the concurrent findings of fact that the appellant committed the alleged rape on the PW3, and the two Courts below emphasising that no reasonable doubt exists that the appellant committed the raped charged; the appellant’s counsel is still submitting that the prosecution, by dint of

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Section 138 of the Evidence Act must prove the guilt of the appellant beyond reasonable doubt. He reiterated the point that there must be no reasonable doubt in the mind of any person observing the proceedings that the accused person was indeed guilty of the offence charged; and that where there is such doubt, as when the prosecution’s case is shaky, the accused would be entitled to have such doubt resolved in his favour. As if he was addressing a pack of uninformed villagers in a village auditorium. The appellant’s counsel, Mr. Omotosho, after some circolocuity, without actually showing satisfactorily how the concurrent findings of fact had occasioned any miscarriage of justice to the appellant, sermonized wishfully that “the learned trial judge and the Court of Appeal had to come to the conclusion that there was no sufficient corroborative evidence of the testimony of PW3. The two Courts below did exactly that as the appellant’s counsel admonished. They found concurrently, as a fact, that Exhibit P2, the medical report issued by the PW5 together with the testimonies of the PW1, PW2, PW4 and the medical evidence of the PW5 had sufficiently corroborated the testimony of the PW3.

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At the apex Court, that is this Court, the appellant’s brief should be demonstrating how the intermediate Court committed some error in its review of the trial Court’s decision and that by the said review error, the appellant had suffered serious miscarriage of justice. In other words, an appeal at the apex Court is not intended that the evidence at the trial should be evaluated for the third or more times. That is, at this level of appeal, the appellant must only concern himself demonstrating how the intermediate Court misconceived his case at the trial Court below it. Having so satisfactorily demonstrated, the appellant then invites this Court to interfere with the decision of the intermediate Court.

The settled principle of law in appellate Court practice is that the apex Court will not lightly interfere with concurrent findings of fact and will not, unless under special circumstances, hear arguments seeking to disturb concurrent findings of fact. To demonstrate the antiquity of this judicial policy, I hereby call in aid Ometa v. Numa (1934) 11 NLR 18; Serbeh v. Karikari (1939) 5 WACA 34.

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Since concurrent findings of fact prima facie entitle the respondent to a judgment dismissing the appeal, the apex Court will decline to review the evidence for the third time unless the appellant proffers or establishes some circumstances that would justify the departure from that practice: Nanka-Bruce v. Gbeke, PC No. 56 of 1948 (Ghana). In Okosi v. The State (1989) 1 NWLR (Pt. 100) 642, the rationale given for this is that the appellate Court is not in a good position to assess the credibility of witnesses. The only Court that has that unique advantage is the trial Court that at the trial proceedings, has the privilege of watching, hearing and observing the witness(es) testify in open Court.

The appellant was convicted for raping the PW3, a school girl returning from school that he violently seized from the road and had forceful non-consensual sexual intercourse with. His identity was not in dispute. Both PW3 and PW4 gave unequivocal and undiscredited evidence on this. The lower Court, affirming the appellant’s conviction, found that the “identification of the accused was spontaneous and natural” and that the evidence of the PW3 and PW4 on

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this “was extemporaneous and unrehearsed”. I cannot, in the circumstance, fault the lower Court’s conclusion that “in such an extemporaneous identification of an accused person, the Court would not be wrong in relying on the evidence of the PW4. SeeIlodigwe v. The State (2012) All FWLR (Pt. 654) 1, (2012) 18 NWLR (Pt. 1331) 1”.

The undiscredited evidence of PW3 established forceful and violent rape of a minor without her consent. She bled and pathetically her uniform was blood stained. She was, no doubt, humiliated by this unwholesome assault. She gave evidence of the sexual intercourse the appellant had with her, and her evidence of the appellant’s penile penetration of her was corroborated by Exhibits P1, P2 and PW5. The PW4, who though did not witness the “raping act”, testified to the violent seizure of the PW3 by the appellant into the bush where the “raping act”, the PW3 testified to, took place. These surrounding circumstances give credence to and corroboration of the PW3’s evidence on “the raping act”. They are consistent with the appellant’s guilt. I agree, as

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submitted by the appellant’s counsel, that the corroborating evidence must be an independent piece of evidence which connects the accused person to the alleged offence. It is a piece of evidence that implicates him and thus confirms in some material particular that not only was an offence committed, but also that it was the accused person who committed the alleged offence: Ekalagu v. The Queen (1960) SCNLR 488; Iko v. The State (2001) FWLR (Pt. 68) 1161, (2001) 14 NWLR (Pt. 732) 221. I also agree with the appellant’s counsel that a corroborative evidence must be flawless, indubitable, credible and undiscredited Sambo v. The State (1993) 6 NWLR (Pt. 300) 399; Igbine v. The State (1997) 9 NWLR (Pt. 519) 101. But it is not enough to so sloganise. Every appellant has a burden (of establishing in substantial way the error in the judgment appealed) to discharge in order to earn a favourable judgment. The appellant herein has not been able to discredit any piece of evidence, either of the PW3 or other pieces of evidence that corroborate her evidence.

I am satisfied from the concurrent findings of fact by the two Courts below, that the

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appellant was not wrongly convicted for the alleged rape on the totality of the evidence proffered by the prosecution at his trial. He had suffered no miscarriage of justice thereby.

The appeal is hereby dismissed in its entirety as I have not seen nor have I been shown any good cause to disturb the appellant’s conviction affirmed by the lower Court on 16 July, 2013 in the appeal No. CA/IL/C18/2013. The said judgment is hereby affirmed.

Appeal dismissed.

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SC.473/2013